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Democrats Draw Line Over LGBT Provision in Defense Authorization Bill

Senate Democrats strongly oppose amendment they say would allow for discrimination

Supporters of gay marriage demonstrate outside the Supreme Court in April 2015. Senate Democrats say an amendment to the defense authorization bill could upend President Barack Obama’s executive order barring federal contractors from discriminating against LGBT people. (Bill Clark/CQ Roll Call file photo)
Supporters of gay marriage demonstrate outside the Supreme Court in April 2015. Senate Democrats say an amendment to the defense authorization bill could upend President Barack Obama’s executive order barring federal contractors from discriminating against LGBT people. (Bill Clark/CQ Roll Call file photo)

Senate Democrats and the White House are drawing a line in negotiations over the defense authorization bill, signaling strong opposition to a provision they say would allow for discrimination based on sexual orientation and gender identity. 

The issue has emerged as one of the hurdles in the negotiations over the National Defense Authorization Act. An amendment added to the House version of the bill would expand protections and exemptions to “any religious corporation, religious association, religious educational institution, or religious society” that receives a federal contract.

White House Chief of Staff Denis McDonough has personally reached out to key lawmakers on the issue, administration officials said at at a Monday meeting with stakeholders.

Meeting participants who spoke to CQ on the condition of anonymity said President Barack Obama is prepared to veto the fiscal 2017 defense policy bill over that language, should it reach his desk.

Senate Democrats argue that the amendment could upend Obama’s executive order barring federal contractors from discriminating against lesbian, gay, bisexual and transgender individuals.

Led by Richard Blumenthal of Connecticut, 42 Senate Democrats signed on to a letter to leaders of the Armed Services committees in both chambers, voicing their opposition.

“This provision would jeopardize protections against discrimination for LGBT workers on the basis of sexual orientation and gender identity” ensured by Obama’s executive order, the senators wrote in the letter obtained by Roll Call. “As such, Section 1094 would significantly — and needlessly — hamper the great progress our nation has made in protecting the rights of LGBT individuals.”

The senators argue that the provision would allow federal contractors who are religiously affiliated to inquire about employees and potential employees’ religion, and discriminate based on their religion. They also say it would allow contractors to hire and fire employees (particularly women) based on their reproductive health decisions.

Although the provision is in the NDAA, it applies to any federal agency and not just to the Defense Department, which has also raised concerns among senators and staff.

However, Blumenthal declined to say whether Democrats would block the NDAA from moving forward if the amendment is attached to the final version.

“I have never voted against a National Defense Authorization Act and I am very, very hopeful that I will vote for this one,” Blumenthal said on a conference call with reporters Tuesday afternoon. “What we’re trying to do here is eliminate this provision before the NDAA reaches the floor.”

“Clearly there are enough signers here to indicate that there is a possibility that the bill could be blocked at least temporarily,” Blumenthal said. “But we have not explicitly said we would. Certainly, if the bill reaches the floor, we will have to consider all the options.”

Senate Democratic staffers said they were surprised about the possibility that the provision could be included in the final version of the bill given the opposition from Democrats and the president. Committees have held staff briefings in recent days to educate staffers on the potential impact of the amendment.

The provision was attached to the House version of the bill during a late-night markup. Oklahoma GOP Rep. Steve Russell offered the amendment. A bipartisan group attempted to strip the amendment when the bill came to the House floor, but their amendment was not allowed on the floor. 

Outside groups such as the Human Rights Campaign have also been involved in notifying staff that this is one of the issues stymying negotiations. 

“This provision is terrible policy created by an even worse process — it was adopted in the dark of night despite bipartisan opposition and never having had a hearing,” David Stacy, the Human Rights Campaign’s government affairs director, said in a statement Tuesday. “This has no place in the annual defense bill.”

Stacy specifically called on Sen. John McCain, chairman of the Senate Armed Services Committee, to oppose the amendment. The Arizona Republican’s office did not respond to requests for comment on the senator’s position.

In addition to McCain, other NDAA negotiators include House Armed Services Chairman Mac Thornberry of Texas, and the ranking Democrats, Rep. Adam Smith of Washington and Sen. Jack Reed of Rhode Island.

Smith and Reed both oppose the amendment.

“Sen. Reed supports protecting religious liberty and opposes provisions that would discriminate against American servicemen and women based on their gender or sexual orientation,” Reed spokesman Chip Unruh said in a statement to Roll Call. “This particular provision has nothing to do with national defense and it could undermine existing federal nondiscrimination rules.”

The White House has also signaled opposition to this provision in a statement of administrative policy issued in May that said the president would veto the House version of the NDAA.

Staffers with several LGBT organizations met with senior legislative staff at the White House on Monday and discussed the issue. An LGBT advocate said administration staff reiterated their opposition to the Russell amendment, which was consistent with the statement of administrative policy.

The American Civil Liberties Union is among the groups supporting the effort to stop the House language from advancing through conference.

“The Russell Amendment is one of the most significant threats to LGBT people and women we have seen in Congress in years. It must be removed from the defense bill — freedom, equality and fairness are at stake,” said ACLU deputy legal director Louise Melling.

John M. Donnelly contributed to this report.

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